HomeMy WebLinkAbout08-5431U
John E. Slike, Esquire
Michael L. Solomon, Esquire
Saidis, Flower & Lindsay
Attorneys for Petitioners
2109 Market Street
Camp Hill, PA 17011
CHARLES D. and DONNA M.
EWING,
Petitioners,
V.
SPANGLER MILL, INC.
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. O 9"' S y 3 I
PETITION FOR APPOINTMENT OF A TEMPORARY RECEIVER WITHOUT
NOTICE
PETITIONERS, by and through their counsel, Saidis, Flower & Lindsay, petition this
Court pursuant to Pa. R.C.P. No. 1533 for the Appointment of a Temporary Receiver Without
Notice in order to prevent the waste of certain real and personal property in which Petitioners
have a secured interest, and in support represent as follows:
Petitioners, Charles D. Ewing and Donna M. Ewing, are husband and wife, residing at
135 Pin Oak Drive, New Cumberland, Cumberland County, Pennsylvania.
2. Defendant, Spangler Mill, Inc. is a Corporation organized and existing on the laws of the
Commonwealth of Pennsylvania, with its principal place of business located at 1425 Spangler
Mill Road, Camp Hill, Pennsylvania.
3. Petitioner, Charles D. Ewing, is the former majority owner of the common stock of
Defendant Corporation, organized on or about December 31, 1996.
1
4. The Defendant Corporation is the successor to Ewing Roofing, Inc. and its business
operates under the name of Ewing Roofing, a registered fictitious name of the Defendant
Corporation.
5. Defendant is engaged in the business of roofing, installation, repair and related
businesses, operating from its principal place of business in Cumberland County, Pennsylvania.
6. Defendant has capital stock and has authorized capital stock of one thousand (1,000)
shares of ten dollar ($10.00) par value and 320 shares issued and outstanding in the name of
Charles B. Ewing, the son of Petitioners.
7. Petitioner, Charles D. Ewing's, remaining shares of stock were sold to Defendant
Corporation pursuant to an Installment Sales Agreement dated June 14, 2001, so that presently,
the only outstanding shares of stock are owned by the said Charles B. Ewing.
8. Petitioner, Charles D. Ewing, resigned as a director and officer of the Corporation on
January 16, 2003, but has continued as an employee of the Corporation.
9. The sole director of the Corporation is Charles B. Ewing and he is present Secretary and
Treasurer of the Corporation. Petitioner, Donna Ewing is Assistant Secretary.
10. Defendant is presently solvent and is able to meet his obligations, but its solvency is
threatened by the continued absence of Charles B. Ewing, who has been absent from the business
without explanation for a period in excess of one (1) month.
11. As a result of Charles B. Ewing's unexplained and continued absence from the business,
the operations of the business are increasingly compromised, but acting without court authority,
Petitioner, Charles D. Ewing, has assumed the position of authority for the Defendant, in whose
business operations he is eminently familiar.
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12. There are pending charges against Charles B. Ewing for possession of marijuana,
controlled substances and drug paraphernalia and a preliminary hearing is scheduled for
September 18, 2008 before Magisterial District Judge Charles Clement.
13. The Defendant Corporation currently employs twelve or more people, whose occupations
are in jeopardy should the Corporation's operations be impaired or marginalized due to lack of
authorized direction.
14. Charles B. Ewing has, in recent months, withdrawn large sums of money from the
corporate checking account for non-business purposes and should he continue to do so, the
Corporation will be unable to operate in a solvent manner.
15. In response to the erratic and detrimental (as it relates to the Defendant Corporation)
behavior of Charles B. Ewing, the Petitioners attempted to internally resolve the exigent
circumstances raised herein by having corporate counsel recently prepare and send the letter
attached hereto as Exhibit A and incorporated herein by reference, but to date, no response to this
letter has been received by either your Petitioners or their attorneys.
16. Petitioners are the owners of the property from which the Corporation operates, under a
lease providing for the payment of a rental of two thousand ($2,000.00) dollars per month.
17. The continued maintenance and operation of the Defendant is necessary for the purpose
of providing ultimately for the payment of its obligations, salaries and taxes, including the rental
payment to the Petitioners.
18. In view of the above, a receiver should be appointed over the property and operations of
the Defendant, for the protection of all interested parties in order that creditors do not assert their
claims in preference to other creditors or interfere or prevent the Defendant from continuing its
3
operations by levy on Defendant's properties; and in order that Defendant may be kept intact and
the rights of creditors, shareholders and employees be conserved.
WHEREFORE, Petitioners request that:
a. This Court appoint Charles D. Ewing as temporary receiver for Defendant, Spangler Mill,
Inc., to take and hold and preserve all of its property and assets and to conduct the
business of the company temporarily under the supervision of the Court;
b. Each and every one of the officers, directors, agents and employees of Spangler Mill, Inc.
be required and commanded to turn over and deliver to the receiver forthwith, any books,
papers, monies, deeds, property, or vouchers for the property under their control;
c. The receiver be authorized and directed to pay and discharge all amounts due to
employees upon the current payroll out of money coming into his hands and to borrow
money, if needed, in order to preserve and protect the property of Spangler Mill, Inc.,
keep its property in good condition and repair, and prevent the property from
deteriorating;
d. The receiver be authorized to transfer the funds from its existing bank account or bank
accounts at Commerce Bank and/or Fulton Bank into a new account at any bank of its
choosing, including the said Fulton Bank and Commerce Bank, and to remove Charles B.
4
Ewing as a person authorized to sign checks from the corporate accounts or to take any
action on behalf of the Corporation, unless this Court shall direct; and
e. The Court grants such further relief as may be appropriate under the circumstances.
Saidis, Flower & Lindsay
Mich 1 L. Solomon, Es uire
Attorney ID # 36031
(?" 'c:)- Z-a,/
Jo . Slike, Esqu re
A ey ID #06262
A rneys for Petitioners
2104 Market Street
Camp Hill, PA 17011
Phone: 717.737.3405
Fax: 717.737.3407
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
2109 MARKET STREET
JOHN E. SLIKE CAMP HILL, PENNSYLVANIA 17011 CARLISLE OFFICE:
ROBERT C. SAIDIS TELEPHONE: (717) 737-3405 - FACSIMILE: (717) 737-3407 26 WEST HIGH STREET
JAMES D. FLOWER, JR EMAIL: msolomon@sfl-law.com CARLISLE, PA 17013
CAROL J. LINDSAY www.sfl-law.com TELEPHONE: (717)243-6222
JOHN B. LAMPI
FACSIMILE: (717)243-6486
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER REPLY TO CAMP HILL
MARYLOU MATAS
Charles B. Ewing September 5, 2008
c/o Ewing Roofing Company
1425 Spangler Mill Road
Camp Hill, PA 17011
Dear Chuck:
We have accepted the challenge of conveying to you the grave situation confronted by Ewing
Roofing. Since at least early July, your father has consulted with our Firm in an effort to arrive at a
workable solution for the business and its employees. We have been made aware of your continued
absence from the business, and of your personal substance abuse struggles that have resulted in at least
one arrest and the depletion of your personal, and to a degree, business accounts.
At the same time, there are devoted and loyal employees of Ewing Roofing who have continued
their diligent efforts in your absence. Were you to resume your activities with the company, for instance,
you would have no idea of current projects, current crew structure or current office obligations. Certain of
the employees have expressed their concern for their ability to work diligently beside you, and frankly,
we are alarmed at the prospect of your resumption of activities in what we believe to be your debilitated
state.
Under these circumstances, we have suggested to your father that it might be prudent and possible
to place the business in receivership through the Cumberland County courts. We believe, ultimately, that
this course of action is in the best interest of the company and yourself, based on your current condition.
At the same time, your father does not desire to impede your ability to feed, clothe and shelter yourself, so
the income stream that you have come to rely upon will flow uninterrupted.
In exchange, it is requested that you voluntarily remove yourself from the day-to-day operations
of Ewing Roofing, and that you stay away from the business until these matters can be resolved one way
or the other. In anticipation of your cooperation along these lines, and because you may have current
unmet financial needs, a check payable to you from the company in the amount of $1,000.00 is enclosed.
Lastly, we invite you to sit down with your father and us in our office at your earliest opportunity.
Sincerely,
Saidis, Flower & Lindsay
John E. Slike and
Michael L. Solomon
MLS/yms
VERIFICATION
I hereby verify that the facts set forth in the foregoing PETITION FOR APPOINTMENT OF A
TEMPORARY RECEIVER WITHOUT NOTICE are true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are subject to the
penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities.
Date: °l - ) .a , 2008
Date: ?" /,;)- - , 2008
CJ, ?:7)?
Charle D. Ewing
onna M. Ewing
6
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r;
SEP 12 2008 h
CHARLES D. and DONNA M.
EWING,
Petitioners,
V.
SPANGLER MILL, INC.
Respondent
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. ?, `/3? c tom, f csK
ORDER APPOINTING TEMPORARY RECEIVER WITHOUT NOTICE
AND NOW, this 15" day of September, 2008, upon consideration of Petitioners'
Petition for Appointment of a Temporary Receiver Without Notice, it appearing from the within
Petition that the Petitioners attempted to notify the Respondent of their intention to seek
appointment of a temporary receiver, and the Court having determined:
(1) that irreparable harm to Petitioners, creditors, employees and customers of the
Respondent business will be harmed if the requested relief is not granted immediately without
notice and hearing; and
(2) that Petitioners do not have an adequate remedy at law; and
(3) that greater injury would be inflicted upon Petitioners by denial of a temporary
receiver than will be inflicted upon Respondent by granting of such relief;
IT IS HEREBY ORDERED AND DECREED THAT:
a. Charles D. Ewing is appointed temporary receiver for Defendant, Spangler Mill, Inc., to
take and hold and preserve all of its property and assets and to conduct the business of the
company temporarily under the supervision of the Court;
b. Each and every one of the officers, directors, agents and employees of Spangler Mill, Inc.
be required and commanded to turn over and deliver to the receiver forthwith, any books, papers,
monies, deeds, property, or vouchers for the property under their control;
1
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34, 20
c. The receiver be authorized and directed to pay and discharge all amounts due to
employees upon the current payroll out of money coming into his hands and to borrow money, if
needed, in order to preserve and protect the property of Spangler Mill, Inc., keep its property in
good condition and repair, and prevent the property from deteriorating;
d. The receiver be authorized to transfer the funds from its existing bank account or bank
accounts at Commerce Bank and/or Fulton Bank into a new account at any bank of its choosing,
including the said Fulton Bank and Commerce Bank, and to remove Charles B. Ewing as a
person authorized to sign checks from the corporate accounts or to take any action on behalf of
the Corporation, unless this Court shall direct; and
e. The Petitioners shall file with the Prothonotary, either by bond or legal tender, the
amount of $ eoo oa , conditioned as set forth in Pa. R.C.P. Nos. 1533(a)(1) or (2).
f. The appointed receiver being one and same as Petitioner Charles D. Ewing, upon
performing as directed in Item e. above, shall be deemed to have provided security in faithful
performance of his duties in accordance with Pa. R.C.P. Nos. 1533(d).
g. A hearing on the continuation or revocation of the receiver's appointment will be
held on October 2008 at ;Z%3Q /p.m. in courtroom mess the receiver
shows cause for an extension of time in order to notify all interested persons.
2
A copy of this Order together with the Petition for Appointment of a Temporary Receiver
Without Notice and all supporting documents filed of record shall be served on the respondent at
least S- days prior to hearing on the continuation or revocation of the receiver's appointment.
By the Court,
J.
cc: Prothonotary
?/Michael L. Solomon, Esquire
John E. Slike, Esquire
Saidis, Flower & Lindsay
Attorneys for Petitioners
2109 Market Street
Camp Hill, PA 17011
? Spangler Mill, Inc.
1425 Spangler Mill Road
Camp Hill, PA 17011
? Charles B. Ewing
137 Blacksmith Road
Camp Hill, PA 17011
q/i`?o$
3
CHARLES D. and DONNA M. IN THE COURT OF COMMON PLEAS OF
EWING, CUMBERLAND COUNTY, PENNSYLVANIA
Petitioners
CIVIL ACTION - LAW
vs.
NO. 08-5431 CIVIL
SPANGLER MILL, INC.,
Respondent:
ORDER
AND NOW, this / s day of October, 2008, on agreement of counsel for the parties,
it is ordered and directed that the appointment of Charles D. Ewing as temporary receiver for
defendant, Spangler Mill, Inc., is extended for a period of ninety (90) days.
? Michael L. Solomon, Esquire
For the Petitioners
/Shane Kope, Esquire
For Charles B. Ewing
/Spangler Mill, Inc.
1425 Spangler Mill Road
Camp Hill, PA 17011
:rlm
ColzCe-C
BY THE COURT,
VINVAWNN3d
S 0 :01 Na h 1 130 UK
John E. Slike, Esquire
Daniel L. Sullivan, Esquire
Saidis, Flower & Lindsay
Attorneys for Petitioners
2109 Market Street
Camp Hill, PA 17011
CHARLES D. and DONNA M.
EWING,
Petitioners,
V.
SPANGLER MILL, INC.
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 08-5431
MOTION TO CONFIRM EXPIRATION OF TEMPORARY RECEIVERSHIP AND TO
RELEASE SECURITY
AND NOW COME PETITIONERS, Charles D. Ewing and Donna M. Ewing, through
their attorneys, SAIDIS, FLOWER & LINDSAY, and respectfully move this Court as follows:
1. On September 12, 2008, Petitioners filed their Petition for Appointment of a Temporary
Receiver Without Notice (the "Petition") with respect to the operation of Respondent, Spangler
Mill, Inc. (the "Company").
2. On September 15, 2008, the Court, per the Honorable Kevin A. Hess, issued an Order
Appointing Temporary Receiver Without Notice.
3. The September 15, 2008 Order, inter alia, appointed Charles D. Ewing as Temporary
Receiver for the Company, directed Charles B. Ewing to file by bond or legal tender the amount
of $5,000, and scheduled a hearing.
4. Charles D. Ewing posted a cash bond in the amount of $5,000 with the Cumberland
County Prothonotary's Office on September 27, 2008.
5. On October 13, 2008, pursuant to an agreement of counsel for the parties, the Court, per
the Honorable Kevin A. Hess, extended the appointment of Charles D. Ewing as Temporary
Receiver for a period of ninety (90) days.
6. Charles D. Ewing's Temporary Receivership is scheduled to expire January 11, 2009.
7. Charles D. Ewing believes and therefore avers that he has conducted the business of the
Company properly and prudently during his receivership, has done all that he could to address
the issues that prompted the initial filing of the Petition, and that his Temporary Receivership
should not be extended beyond January 11, 2009.
8. Charles D. Ewing has advised his son, Charles B. Ewing, sole owner and director of the
Company, of his intent that the Temporary Receivership expire on January 11, 2009, and of his
understanding and expectation that Charles B. Ewing will resume sole operation of and
responsibility for the Company effective January 12, 2009.
9. Charles B. Ewing has, in fact, returned to work, has been active in business operations
since late December 2008, and is prepared to undertake operation and control of the Company
on January 12, 2009.
10. Petitioner respectfully requests that the Court confirm expiration of the Temporary
Receivership and order release and return of the bond in the amount of $5,000.
11. Counsel for Petitioner has discussed the foregoing Motion and requested relief with
Shane Kope, Esquire, counsel for Charles B. Ewing, and Mr. Kope has consented to the relief
requested herein.
WHEREFORE, Petitioners respectfully request that the Court issue an Order in the form
attached hereto granting the requested relief.
Saidi lower & Lindsay
John like, Esquire
Atto y ID # 06262
Daniel L. Sullivan, Esquire
Attorney ID #34548
Attorneys for Petitioners
2109 Market Street
Camp Hill, PA 17011
Phone: 717.737.3405
Fax: 717.737.3407
2
VERIFICATION
I hereby verify that the facts set forth in the foregoing MOTION are true and correct to the best
of my knowledge, information and belief. I understand that false statements herein are subject to
the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities.
Date: January -, 2009 --?
Charles D. Ewin
CERTIFICATE OF SERVICE
AND NOW, January 6 , 2009, I, DANIEL L. SULLIVAN, Esquire, of the
law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that I did serve a copy of the
foregoing Petition upon all counsel of record by depositing, or causing to be deposited,
same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows:
By First Class Mail:
Shane B. Kope, Esq.
Kope & Associates, LLC
4660 Trindle Road, Suite 201
Camp Hill, PA 17011
Daniel L. Sullivan, Esquire
SAIDIS, FLOWER & LINDSAY
Attorney I.D. 34548
2109 Market Street
Camp Hill, PA 17011
(717)737-3405
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JAN 0 8 Z009A
CHARLES D. and DONNA M.
EWING,
Petitioners,
V.
SPANGLER MILL, INC.
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 08-5431
ORDER
AND NOW, this 9' day of January, 2009, upon consideration of Petitioners' Motion to
Confirm Expiration of Temporary Receivership and to. Release Security, said Motion is hereby
GRANTED. 1t is hereby ORDERED that (1) the expiration of the Temporary Receivership is
confirmed as of January 11, 2009; and (2) the Prothonotary shall release and return to Charles D.
Ewing the bond posted by him ,on September 27, 2008 in the amount of $5,000.
By the Court,
J.
cc: Prothonotary
Jgbn E. Slike, Esquire
amel L. Sullivan, Esquire
Saidis, Flower & Lindsay
Attorneys for Petitioners
2109 Market Street
Camp Hill, PA 17011
angler Mill, Inc.
1425 Spangler Mill Road
Camp Hill, PA 17011
ane B. Kope, Esq.
Kope & Associates, LLC
4660 Trindle Road, Suite 201
Camp Hill, PA 17011
1
PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2008-05431 EWING CHARLES D ET AL (vs) SPANGLER MILL INC
Reference No... Filed......... 9/12/2008
Case Type...... PETITION
Judgment .... .00 Time..... ..:
Execution Date 12.54
0/00/0000
Judge Assigned: Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt l.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
EWING CHARLES D PETITIONER SOLOMON MICHAEL L
135 PIN OAK DRIVE SLIKE JOHN E
NEW CUMBERLAND PA 17070 2343
EWING DONNA M PETITIONER SOLOMON MICHAEL L
135 PIN OAK DRIVE SLIKE JOHN E
NEW CUMBERLAND PA 17070 2343
SPANGLER MILL INC RESPONDENT
1425 SPANGLER MILL ROAD
CAMP HILL PA 17011
********************************************************************************
* Date Entries
********************************************************************************
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
9/12/2008 PETITION FOR APPOINTMENT OF A TEMPORARY RECEIVER WITHOUT NOTICE -
BY MICHAEL L SOLOMON AND JOHN E SLIKE ATTYS FOR PLFFS - SAIDIS
FLOWER & LINDSAY
-------------------------------------------------------------------
9/16/2008 ORDER APPOINTING TEMPORARY RECEIVER WITHOUT NOTICE - 9/15/08 IN
RE: PETITION FOR APPOINTMENT OF A TEMPORARY RECEIVER WITHOUT
NOTICE - IT IS HEREBY ORDERED THAT CHARLES D EWING IS APPOINTED
TEMPORARY RECEIVER FOR DEFT SPANGLER MILL INC - BY KEVIN A HESS J
- COPIES MAILED 9/16/08
-------------------------------------------------------------------
10/14/2008 ORDER - 10/13/08 - ON AGREEMENT OF COUNSEL FOR THE PARTIES IT IS
ORDERED AND DIRECTED THAT THE APPOINTMENT OF CHARLES D EWING AS
TEMPORARY RECEIVER FOR DEFT SPANGLER MILL INC IS EXTENDED FOR A
PERIOD OF 90 DAYS - BY KEVIN A HESS J - COPIES MAILED 10/14/08
-------------------------------------------------------------------
1/07/2009 MOTION TO CONFIRM EXPIRATION OF TEMPORARY RECEIVERSHIP AND TO
RELEASE SECURITY - BY JOHN E SLIKE AND DANIEL L SULLIVAN ATTYS FOR
PETITIONERS
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal P*ymts/Ad? End Bal
******************************** ******** ****** *******************************
PETITION 55.00 55.00 .00
TAX ON PETITION .50 .50 .00
SETTLEMENT 8.00 8.00 .00
AUTOMATION FEE 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
BOND 5000.00 5000.00 .00
------------------------ ------------
5078.50 5078.50 .00
********************************************************************************
* End of Case Information
************************************** ** ************************************
,5000.00 1000,00 y,00 (Jaf-6 Ei n ?, p`30 00
a -
70.00 30/0_30,00 l /o y0D 70-00
. vd ?konAa
3 0 ? ? -0100
-? D . 0 D
CUMBERLAND COUNTY
OFFICE OF THE PROTHONOTARY
ESCROW ACCOUNT
CUMBERLAND COUNTY COURT HOUSE
CARLISLE, PA 17013
CHARLES D. EWING
1834
January 12, 2009
60-1503/313
4,930.00
3 Go
OTIABLE
08-5431 - Release Bond - Ewing vs Spangler
1160OL83411' 1:03L3L50361: 108 LLLL7LIP
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RECEIPT FOR TRANSFER
--------------------
--------------------
Cumberland County Prothonotary's Office Receipt Date 01/12/2009
Carlisle, Pa 17013 Receipt Time 9:53:39
Receipt No. 219310
EWING CHARLES D
135 PIN OAK DRIVE
NEW CUMBERLAND, PA 17070
Case Number 2008-05431
Remarks SEPERATED PAYEE DUE TO PAYING
THE PROTHY POUNDAGE
---------------------- Distribution Of Adjustment ---------------------------
Transaction Payee This Adj
BOND EWING CHARLES D 70.00-
BOND PROTHONOTARY ESCROW 70.00
BOND EWING CHARLES D 4,930.00-
BOND EWING CHARLES D 4,930.00